The attempt to establish Sharia courts in India is an attempt to establish a private parallel judicial system which cannot be permitted by law. The All-India Muslim Personal Law Board (AIMPLB) has announced that it will establish Sharia courts in all districts of the country. These courts will deliver justice in family and property matters under Islamic law. Forty Sharia courts are already operational in various districts in Uttar Pradesh.
There are several unanswered questions regarding the legality of Sharia courts:
- Who is the AIMPLB and under what authority is it going to establish Sharia courts in the country?
- Under what authority will it appoint judges (qazis) and what will be their eligibility in accordance with the law that governs India?
- Under what authority will the courts summon the opposite parties and witnesses? If the other party or witnesses don't come how will they force them to come before the Sharia court?
- Where is the police force to implement these orders and if you cannot implement the orders of these courts, why set them up?
How are courts established in India?
When the Constitution of India was established and enforced in 1960, the Preamble stated that "We the people of India, having solemnly resolved to make India a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC… hereby adopt, enact and give to ourselves this Constitution". That means we, the people of India, gave this rule book according to which 1.2 billion of us Indians will be governed. This rule book, ie the Constitution, is sovereign according to which the entire land is to be governed. This land is secular and this law is applicable to all irrespective of religion.
Article 124 of the Constitution of India talks about establishment and constitution of Supreme Court and the eligibility of judges.
Article 141 states that law declared by Supreme Court will be binding on all the courts within the territory of India.
Article 142 says that the orders of the Supreme Court will be enforced throughout the territory of India. We are governed by Rule of Law which is established through the Constitution, Supreme Court and various other courts. For the enforcement and implementation of these laws we have duly constituted a police force under The Police Act 1949.
The AIMPLB has no power to establish "courts", it is just a private society formed in 1972. The power to establish courts is given only by the Constitution. AIMPLB's move is clearly a counter blast to the judgment of the Supreme Court in August 2017 (Shayara Bano versus Union of India and Others) declaring triple talaq to be bad in religion, bad in law and hence, illegal and unconstitutional. There are other cases as well.
The Supreme Court is hearing a petition pleading to declare polygamy and nikah halala as illegal (Sameena Begum versus Union Of India). The Delhi High Court is hearing a public interest litigation (PIL) in which Muslim women have challenged the denial of equal rights of inheritance. Hence, when the legally-constituted courts in India are addressing the issues of Muslim women and giving them justice through Right to Equality (Article 14), Right to Liberty (Article19) and Right to Life (Article 21) as available to women of other religions, this attempt to set up Sharia courts is a move to hamper the process.
India is a secular country, there is no State religion and all religions are equal before law. The State will deliver justice irrespective of religion, caste or gender of people. Establishment of Sharia courts is a blow to secularism which is the basic principle of our Constitution.
AIMPLB claims that Sharia courts are merely arbitration centres, but that is just a smokescreen. The setting up of Sharia courts is merely an attempt to mislead the Muslim community which will be made to believe that it is a court and if its orders are not followed then their acts will be anti-Islamic. Further, they will harbour fear of a social boycott and blasphemy in case they disobey the orders. Mediation and arbitration centres are nothing like that. A case can be referred to arbitration/mediation centre only when both the parties agree. They don’t have judges (qazis) but counsellors who talk to both the parties and settle the disputes. Mediation centres cannot enforce or pass orders.
If they are indeed mediation centres, why are they not called Sharia counselling or mediation centres?
There is no rule book (codified law), according to which complaints will be registered, evidence will be taken, cross-examination will be done, judgments will be cited, final arguments will be heard and justice will be delivered. How will people be able to appeal against their orders? Without any proper codification of rules, the qazis will interpret the disputes in accordance to their own social, religious and cultural backgrounds, and will pronounce judgments according to their own whims and fancies.
The judgments will often be against the right to equality, freedom and dignity of women. This will lead to violation of the rule of law.
That is why, the Supreme Court, in the case of Vishwa Lochan Madan versus Union of India and Others in 2005, declared Sharia courts as illegal and unconstitutional. The court held that fatwas issued by Muslim Sharia courts (Dar-ul-Qazas) do not have legal sanctity and can’t be enforced if they infringed on the fundamental rights of an individual.
In this case, a woman from Kukda village in Muzaffarnagar district of Uttar Pradesh was raped by her father-in-law, following which the village panchayat passed a fatwa asking her to treat him as her husband. The Dar-ul-Uloom also declared that she had become ineligible to live with her husband. This was endorsed by the AIMPLB as well. She then approached the Supreme Court that declared it illegal and unconstitutional.
The AIMPLB has already been in the news for all the wrong reasons and being against the modernisation of the Muslim community and against giving women the right to live with equality and dignity. It doesn’t even represent the entire Muslim community as neither Shias nor Muslim women follow the ideology of the AIMPLB. The Shias are separately represented by All-India Shia Personal Law Board (AISPLB) and Muslim women by the All-India Muslim Women Personal Law Board (AIMWPLB).
Any attempt to justify the establishment of Sharia courts should not be taken lightly as it is a dangerous move of to undermine the judicial system of the country on the one hand and establish Islamic Law as against the Rule of Law.
The author is a practicing advocate in the Supreme Court
Updated Date: Jul 12, 2018 14:11 PM